Legislation fights workplace age bias

By Sondra L. Shapiro

There are some images that you never forget. For me, it was an investigative news segment many years ago that had two woman applying for the same position in a variety of shops and department stores. One woman was older, the other much younger.

In every instance, the older woman was either told the position was already filled when it wasn’t or that she wasn’t right for the position. It didn’t matter to her potential employers that she had more experience than the younger applicant did.

During one of the interviews, the person questioning the older applicant wouldn’t even make eye contact as she told the woman the position was filled. Moments later when the younger woman applied for the same position, she was rewarded with a touch on the shoulder and a wide smile as the interviewer told her she seemed perfect for the job.

Age discrimination in the work place is an age-old problem — exacerbated by the recession. During the height of the economic downturn, the Labor Department reported unemployed workers 55 or older were jobless an average of nearly 30 weeks, compared with about 21 weeks for those under 55. Today the average length of unemployment between jobs for older workers is well over a year.

In a recent AARP survey, 29 percent of Massachusetts residents reported that they or someone they know has experienced age discrimination.

So, it is no surprise that the survey of Massachusetts registered voters age 50 and older found 76 percent favor passage of the bipartisan federal legislation, Protecting Older Workers Against Discrimination Act (POWADA).

The legislation, sponsored by Sens. Chuck Grassley, R-Iowa, Tom Harkin, D-Iowa, and Patrick Leahy, D-Vt., is designed to overturn a divided (5-4) U.S. Supreme Court decision (Gross v. FBL Financial Services) that made it much more difficult for older workers to prove claims of illegal bias based on age.

Of those polled in Massachusetts, 74 percent said they believe “age would be an obstacle to finding work.”

This is a sentiment that hits home since I have friends who believe that their age has kept them from finding work.

“At least three-fourths of moderates, liberals and conservatives endorse POWADA,” said Bill Johnston-Walsh, state director of AARP Massachusetts. “This AARP survey confirms: The vast majority of Bay State residents, regardless of political ideology, demand fairness for older workers.”

According to AARP, the Gross decision substantially toughened the standard an older worker must meet in order to prove his or her employer violated the federal Age Discrimination in Employment Act (ADEA). The decision means many older workers will never see their day in court.

According to AARP, the ruling is even being applied by some courts to restrict the rights of employees in other types of employment discrimination cases — citing as an example a federal court of appeals in Cincinnati that applied the ruling to limit rights to challenge disability-based bias under federal law.

“For decades, if an older worker showed that age was one motivating factor in an adverse employment decision, even if other motives also played a role, the employer had to prove that it would have made the same decision without considering the employee’s age,” according to AARP. Since the Gross decision, employees must prove the employer would not have taken the adverse action “but for” their age. Meaning that age played the determining role — a significantly higher standard of proof.

The legislation would restore the old standard and help ensure that employees have a more level playing field when fighting age discrimination in court.

The AARP survey of 400 Massachu-setts residents, conducted by telephone from May 14 to May 20, found 88 percent agree that “Congress needs to do more to ensure people over 50 continue to have an equal opportunity to work for as long as they want or need to — regardless of their age.”

Baby boomers have been hit especially hard during this recession. While they have been suffering layoffs like the rest of the work force, it has been harder to get jobs. Let alone in their chosen careers. While retirement might be an answer for some, for many boomers retirement is impossible in the current economic climate. Adding to the mix of woes are diminished 401k plans, declining home values, a shift from defined-benefit pensions to defined-contribution plans and insecurity about the future of Medicare and Social Security.

Since the population is aging, it is logical to assume instances of discrimination would be waning. Not so. When I saw that investigative report all those years ago I remember thinking things will change as my cohorts swell the ranks of the 55 plus population. Yet, the results of the AARP survey prove the contrary is true. That’s why it is critical that lawmakers pass POWADA.